In light of the recent discussions of this issue on the list, and in light the various proposals percolating in the states, I've got a question for the group and a shameless plug.
First, the shameless plug -- I've just posted a new piece on the issue to SSRN (it won't be in print until next year, so comments and suggestions would be very welcome): *Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses* http://ssrn.com/abstract=2400100 The article addresses two major questions that have gone largely unexamined in the literature to date: First, why has the legal academy been so solicitous of religious objections to same-sex marriage when it was never receptive to similar objections to interracial marriage? Second, if a state were to adopt the leading academic proposal for religious exemptions--a proposal that would allow for-profit businesses to discriminate against same-sex couples--would the exemptions be vulnerable to an equal protection challenge? The "leading academic proposal" I discuss is the Laycock/Berg/Garnett/Wilson proposal Chip mentions below, and the principal discussion of that proposal begins on page 35 of the draft. A more general discussion of exemptions for commercial businesses starts on page 27 of the draft. Second, the question for the group: What explains the recent pivot from the "marriage specific" proposals (e.g., proposed amendment to Minnesota's 2012 marriage recognition legislation; proposed amendment to Washington's 2012 marriage recognition legislation; proposed 2014 ballot initiative in Oregon; 2014 proposed bills in Kansas, Idaho, South Dakota, Tennessee) to the "expansion of RFRA rights" proposals (Arizona, Missouri)? Is it an effort to tie into what is expected to be a victory for Hobby Lobby under the federal RFRA? - Jim P.S. My understanding is the same as Chip's -- no state has yet adopted marriage exemptions that extend to commercial vendors. Speaking of Chip, his article with Bob on this topic is essential reading ( http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp ). On Wed, Feb 26, 2014 at 8:33 AM, Ira Lupu <icl...@law.gwu.edu> wrote: > That is my understanding, Hillel. If Doug, Rick, Tom, or others know of > counterexamples, I'm sure they will bring them forward to the list. > > > On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin > <hillelle...@gmail.com>wrote: > >> Chip: >> >> Thanks for the cite! I will take a look. >> >> And just so I understand: are you asserting that *none* have adopted the >> broader exceptions (wedding vendors, etc)? >> >> >> On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu <icl...@law.gwu.edu> wrote: >> >>> Hillel: >>> >>> The same sex marriage laws to which you refer do have "exceptions," for >>> clergy, houses of worship, and (sometimes) for religious charities and >>> social services. Bob Tuttle and I analyze and collect some of that here: >>> http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp. >>> There is plenty of other literature on the subject. >>> >>> What has happened in other states since we wrote that piece is quite >>> consistent with the pattern we described. These laws do NOT contain >>> exceptions for wedding vendors (bakers, caterers, etc.) or public employees >>> like marriage license clerks. Those are the efforts that have failed, over >>> and over. >>> >>> Chip (not Ira, please) >>> >>> >>> On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin <hillelle...@gmail.com >>> > wrote: >>> >>>> Ira: >>>> >>>> You say that these bills have failed over and over again. If I'm not >>>> mistaken, several states that recognize same-sex marriage and/or have >>>> non-discrimination laws protecting gays and lesbians *do* have >>>> religious exceptions (as does the ENDA that passed the senate not long ago, >>>> only to die in the House). Am I mistaken? Do you (or anyone else here!) >>>> know of any literature that canvasses the laws in this context? >>>> >>>> Many thanks. >>>> >>>> >>>> On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu <icl...@law.gwu.edu> wrote: >>>> >>>>> The Kansas bill is very sex/gender specific, and it is not limited to >>>>> weddings in any way. The rights it creates appear absolute -- no interest >>>>> balancing. It would authorize all sincere religious objectors (persons >>>>> and >>>>> entities, including businesses) to treat same sex marriages/domestic >>>>> partnerships, etc. as invalid, even if the 14th A required states to >>>>> license and respect such weddings. It would authorize those objectors to >>>>> refuse to provide goods and services to anyone celebrating such a wedding >>>>> or commitment, and to deny employee spousal benefits to same sex spouses. >>>>> >>>>> The Arizona bill protects religious freedom generally, and the >>>>> amendment extends the coverage explicitly to corporations. The same >>>>> religious objections to same sex weddings, marriages, etc. could be made >>>>> under the Arizona bill. The AZ bill permits a compelling interest defense >>>>> (therefore more "moderate"?), but it also is far more sweeping because it >>>>> might be invoked to justify religious discrimination against customers for >>>>> all sorts of reasons of status and identity, not limited to sexual >>>>> orientation. >>>>> >>>>> Unlike federal RFRA, which was a generic response to Smith and brought >>>>> together a coalition of many faith groups and civil liberties groups, the >>>>> amendments to Arizona RFRA are driven by exactly the same political forces >>>>> as are driving the Kansas bill and others -- opposition to same sex >>>>> marriage and same sex intimacy, and an assertion of rights of some >>>>> business >>>>> people to refuse to serve that population. So the good lawyers on this >>>>> list can parse the differences in the bills, and we can debate which bill >>>>> would do more harm or more good, if you think there is any good here to be >>>>> done. But no one can credibly deny that all of these current legislative >>>>> efforts are driven by the same political forces. >>>>> >>>>> Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for >>>>> the past 5 years been pushing narrower versions of these bills in states >>>>> that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.) >>>>> Those efforts have failed over and over again. Now that same sex >>>>> marriage >>>>> seems headed for the red states, we are just seeing broader, uglier, less >>>>> nuanced versions of the same agenda. I hope and expect that Gov. Brewer >>>>> will veto the AZ bill, and it's nice to see the fierce national pushback >>>>> against these attempts to legitimate anti-gay bigotry, whatever its >>>>> religious underpinnings in some cases. >>>>> >>>>> >>>>> On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark < >>>>> mark.scarbe...@pepperdine.edu> wrote: >>>>> >>>>>> That should have been "much more moderate/less sweeping." >>>>>> >>>>>> Mark >>>>>> >>>>>> Mark S. Scarberry >>>>>> Pepperdine University School of y >>>>>> >>>>>> >>>>>> Sent from my Verizon Wireless 4G LTE Smartphone >>>>>> >>>>>> >>>>>> -------- Original message -------- >>>>>> From: "Scarberry, Mark" >>>>>> Date:02/26/2014 6:47 AM (GMT-08:00) >>>>>> To: Law & Religion issues for Law Academics >>>>>> Subject: RE: Subject: Re: Kansas/Arizona statutes protecting >>>>>> for-profit businesses >>>>>> >>>>>> Marci's view of the rights of a Walmart under tha AZ bill, and likely >>>>>> even the Kansas bill, is simply wrong. >>>>>> >>>>>> The application in the AZ bill to private enforcement by way of >>>>>> lawsuit simply prevents the state from doing indirectly what it can't do >>>>>> directly, cf. NY Times v. Sullivan, and makes clear something that >>>>>> already >>>>>> should be the case under RFRAs, properly interpreted. >>>>>> >>>>>> It also is the case that the AZ bill is much more moderate/sweeping >>>>>> than the Kansas bill. >>>>>> >>>>>> Mark S. Scarberry >>>>>> Pepperdine University School of Law >>>>>> >>>>>>
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